Gibson

This is an action to foreclose a materialman’s lien. The owner of the property, Wheeler, and Tetro, the contractor, are joined as defendants-Plaintiff recovered judgment in the sum of one hundred and twenty-two dollars and seventy-three cents, which sum was adjudged alien upon the property, and defendant Wheeler now appeals upon the judgment-roll without a bill of exceptions. The status and rights of the contractor are not here involved. The main contention of appellant is that a fatal variance exists between the allegations of the complaint, and the findings of fact made by the trial court. The complaint alleges that a certain balance of the contract price, which was seven hundred and sixty-eight dollars, is still in the hands of the defendant Wheeler, and bases a right of recovery upon that ground. It not being necessary to record the contract, owing to the fact that the contract price was less than one thousand dollars, it would seem that no recovery could be had under any other theory than the one suggested. To be sure, we find an allegation in the complaint that “ A. Tetro, as the agent and contractor for the owner, Ella A. Wheeler, entered into a contract with the…